Robert Hoofman v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT HOOFMAN,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2013-3029
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752110266-I-1.
______________________
Decided: May 13, 2013
______________________
ROBERT H OOFMAN, of Anchorage, Alaska, pro se.
ANTONIA R. S OARES , Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. D ELERY , Principal Deputy
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor, and F RANKLIN E. WHITE, J R., Assistant Director.
______________________

-- 1 of 6 --

ROBERT HOOFMAN v. ARMY 2
Before N EWMAN, P LAGER, and O'MALLEY , Circuit Judges.
P ER CURIAM
Robert J. Hoofman pro se petitions for review of the
final decision of the Merit Systems Protection Board
(MSPB or the Board) sustaining his removal for miscon-
duct. Hoofman v. Dep’t of Army, SF-0752-11-0266-I-1
(M.S.P.B. Sept. 18, 2012). Because the Board correctly
sustained Mr. Hoofman’s removal, we affirm.
BACKGROUND
Mr. Hoofman was a Construction Control Representa-
tive with the U.S. Army Engineer District in Anchorage
Alaska. Late one night, Mr. Hoofman was driving home
in a government vehicle when, through a chain of events
that remains unclear, he stranded the vehicle on top of a
sand pile. He tried to free the vehicle from the sand pile
by switching between forward and reverse gears but was
unsuccessful. The police arrived at the scene at around
1:30 a.m. and observed the stranded vehicle, Mr. Hoof-
man, and two other passengers inside the stranded vehi-
cle. The police requested that Mr. Hoofman submit to a
chemical breath test but he refused. Mr. Hoofman now
admits that he had been drinking prior to the police
arriving.
The next day Mr. Hoofman pled guilty to a charge of
Refusal of Breath Test, which resulted in the Alaska court
revoking his driver’s license, requiring him to use an
ignition interlock system and to spend time in jail. The
following morning, Mr. Hoofman contacted his supervisor
and requested two weeks of leave due to personal family
reasons. He did not tell his supervisor about stranding
the government vehicle or his arrest. Mr. Hoofman also
contacted a colleague and requested that the colleague
retrieve the vehicle, which had been impounded, and not
tell anyone. The police released Mr. Hoofman from jail
approximately 10 days later, at which time Mr. Hoofman

-- 2 of 6 --

ROBERT HOOFMAN v. ARMY 3
explained the incident to his supervisor. Shortly thereaf-
ter, the Army proposed Mr. Hoofman’s removal based on
four charges: 1) driving a government vehicle while under
the influence of alcohol; 2) using a government passenger
vehicle for other than official purposes; 3) loss of his
driver’s license for one year and having to use an ignition
interlock device for one year after regaining his driving
privileges; and 4) attempting to deceive his supervisor.
Mr. Hoofman challenged his proposed removal, but he
did not entirely dispute what happened on the night in
question; rather he argued that additional facts were
necessary to understand the context and sequence of the
events. Mr. Hoofman provided a signed memorandum
outlining his version of the story, a portion of which we
quote below.
Mr. Hoofman admits he was driving the Govern-
ment truck and got it stuck, sometime around
2300 hours. He states he was driving alone and
had not been drinking. When he could not get the
vehicle unstuck, he walked to his apartment that
was nearby. At the apartment, he admitted he
consumed alcohol. About 0100 hrs, walking back
to the truck, he met 2 individuals nearby and
asked for their assistance to get his truck unstuck;
they agreed to help provided Mr. Hoofman provid-
ed them a ride (somewhere) afterwards, Mr.
Hoofman agreed. They could not get the vehicle
unstuck. . . . He does not recall when the 2 indi-
viduals got into the vehicle.
Resp’t’s App. A43.
The Army did not think that Mr. Hoofman’s explana-
tion was credible and formalized his removal, which Mr.
Hoofman appealed to the MSPB. The Administrative
Judge issued an initial decision reversing the Army’s
removal decision for, amongst other reasons, relying upon

-- 3 of 6 --

ROBERT HOOFMAN v. ARMY 4
hearsay evidence from a police affidavit1 and for a lack of
evidence supporting Mr. Hoofman’s fourth charge. The
Army petitioned for review, and the Board reversed the
initial decision and sustained the removal action relying
only on undisputed and admitted facts. In particular,
rather than relying on the police affidavit to establish
that Mr. Hoofman had been driving under the influence,
the Board relied on Mr. Hoofman’s admission from his
Statement of Facts found in his Pre-Hearing Submission
that he operated the motor vehicle while trying to dis-
lodge it from the sand pile. The Board also upheld the
Army after clarifying the nature of the fourth charge as a
lack of candor charge rather than a falsification charge.
This petition for review followed. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review is limited. We only set aside
Board decisions that are “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c).
On appeal, Mr. Hoofman argues that we should re-
verse the Board because the Army did not sustain its
burden of proof for charges 1 and 2. According to Mr.
Hoofman, the sole evidence the Army relied upon was
hearsay, and the Board had to supply additional infor-
mation to prove the Army’s case. We disagree.
1 The affidavit states that one of the two passengers
told an officer that Mr. Hoofman “drove them from Tony’s
Bar” and that Mr. Hoofman was in the driver’s seat and
the vehicle was running when the officer arrived. Resp’t’s
App. A61.

-- 4 of 6 --

ROBERT HOOFMAN v. ARMY 5
The Board did not supply information. The parties
supplied the information. Indeed, Mr. Hoofman through
his declarations and admissions supplied much of the
information that he was under the influence of alcohol
and operated the vehicle to remove it from the sand pile.
The Board simply considered this information and found
that it supported the Army’s decision by a preponderance
of the evidence. See 5 U.S.C.A. § 7701.
Mr. Hoofman states that he never admitted that he
operated the vehicle to remove it from the sand pile and
that his attorney included that description in the State-
ment of Facts without his knowledge. Mr. Hoofman
requests that we dismiss his Statement of Facts and only
rely on other evidence that he provided. But Mr. Hoof-
man cites no legal authority explaining why we should do
so. Mr. Hoofman also never sought to retract or correct
the Statement of Facts before the Board. At no point did
Mr. Hoofman explain how he tried to free the vehicle in a
different manner, nor did he explain why the two individ-
uals that he purportedly met by his car were inside his
vehicle if the three of them were supposedly freeing the
vehicle without operating it. Finally, Mr. Hoofman ad-
mits that it was “due to [his] own negligence” that “things
were written and submitted without [his] input.” Pet’r’s
Rep. Br. at 2. Mr. Hoofman’s negligence does not free him
from his Statement of Facts. We conclude that substan-
tial evidence supports the Board’s conclusions on charges
1 and 2.
Mr. Hoofman next contends that the Army’s Petition
for Review should be dismissed because the Army misrep-
resented to the Board the interim relief that it provided to
Mr. Hoofman. The Board did not explicitly address this
issue in its order. We note, however, the relevant regula-
tion provides discretion to dismiss or not dismiss.
5 C.F.R. § 1201.116(e) (“Failure by an agency to provide
the certification required by paragraph (a) of this section
with its petition or cross petition for review, or to provide

-- 5 of 6 --

ROBERT HOOFMAN v. ARMY 6
evidence of compliance in response to a Board order . . .
may result in the dismissal of the agency's petition or
cross petition for review.”) (emphasis added); see also
Guillebeau v. Dep't of Navy, 362 F.3d 1329, 1332 (Fed.
Cir. 2004). To the extent that the Army violated 5 C.F.R.
§ 1201.116(e) when it filed its Petition for Review, such a
violation does not warrant dismissal of the Petition under
the circumstances of this case.
Mr. Hoofman invokes due process regarding the
Board’s treatment of his fourth charge. He contends that
the Board modified the fourth charge of attempting to
deceive his supervisor to a “lack of candor” rather than a
“falsification” charge. As the Board noted, however, the
words “falsify” or “falsification” appear nowhere in the
charge. Moreover, the Army’s Notice of Proposed removal
suggests that it viewed the charge as a failure to disclose
(“[y]ou did not inform Mr. Jong . . .”)2 rather than an
affirmative misrepresentation. The Board’s interpreta-
tion of the charge is not arbitrary, capricious, nor an
abuse of discretion.
We have considered each of Mr. Hoofman’s remaining
arguments, and we conclude that the Board should be
affirmed.
AFFIRMED
COSTS
No Costs.
2 Resp’t’s App. A36.

-- 6 of 6 --